32 A. 1108 (Pa. 1895), 224, Deloy v. Travelers Ins. Co.

Docket Nº:224
Citation:32 A. 1108, 171 Pa. 1
Opinion Judge:MR. CHIEF JUSTICE STERRETT:
Party Name:Adele DeLoy v. Travelers Insurance Company, Appellant
Attorney:J. A. Beeber and John G. Johnson, Clarence E. Sprout with them, for appellant. Henry C. McCormick, Frank P. Cummings and Seth T. McCormick with him, for appellee.
Judge Panel:Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM and FELL, JJ.
Case Date:October 07, 1895
Court:Supreme Court of Pennsylvania
 
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Page 1108

32 A. 1108 (Pa. 1895)

171 Pa. 1

Adele DeLoy

v.

Travelers Insurance Company, Appellant

No. 224

Supreme Court of Pennsylvania

October 7, 1895

         Argued: March 20, 1895

          Appeal No. 224, July T., 1894, by defendant, from judgment of C.P. Lycoming Co., June T., 1893, No. 204, on verdict for plaintiff. Affirmed.

         Assumpsit on an accident insurance policy for the death of plaintiff's husband. Before METZGER, P.J.

         The policy in suit, in which plaintiff was named as beneficiary, contained the following clause:

         "5. This insurance does not cover disappearances; nor suicide, sane or insane; nor injuries of which there is no visible mark on the body (the body itself, in case of death, not being deemed such mark); nor accident, nor death, nor loss of limb or sight, nor disability resulting wholly or partly, directly or indirectly, from any of the following causes, or while so engaged or affected: Disease or bodily infirmity, hernia, fits, vertigo, sleep-walking, medical or surgical treatment, except amputations necessitated solely by injuries and made within ninety days after accident; intoxication or narcotics; voluntarily or involuntarily taking of poison, or contact with poisonous substances, or inhaling of any gas or vapor; sunstroke or freezing; dueling or fighting, war or riot; intentional injuries (inflicted by the insured or any other person); voluntary overexertion; violating law; violating rules of a corporation; voluntary exposure to unnecessary danger; expeditions into wild or uncivilized countries; entering or trying to enter or leave a moving conveyance using steam as a motive power (except cable cars); riding in or on any conveyance not provided for transportation of passengers; walking or being on a railway bridge or road-bed (railway employees excepted)."

         The evidence at the trial showed that Francis DeLoy, plaintiff's husband, was a lumberman, engaged in lumbering operations near DeLoy station, on the Jersey Shore and Pine Creek Railroad. At this station there was a small station house with a platform, but being a mere flag station there was no station agent to stop trains. The evidence tended to show that a flag was kept in the station house, and it was the custom of persons wishing to stop a train to flag it. On October 10, 1892, the deceased flagged a train, and returned with the flag to the station side of the track, walked a few steps up the side of the track to take the train, when he slipped or stumbled and fell towards the track as the train approached, and was struck in the breast by the engine and instantly killed.

         The engineer of the train testified as follows:

         "Q. You said when you first saw him flagging the train he was standing on the track, and then he moved off outside the rail? A. Yes. sir." On re-cross-examination the witness testified, "I thought he was off the end of the ties, and I thought we were going to clear him." The same witness further testified: "It seemed as though he slipped or something, but I thought his body was far enough to clear him -- it seemed to me as though the man was going to clear it. It was quick done, but he seemed to kind of slip or something, and his body seemed to come closer to the bumper."

         The court charged in part as follows:

         It is contended that he lost his life, first, by voluntarily exposing himself to unnecessary danger; secondly, by walking or being upon the railroad bed at the time when the accident took place, and death resulted from it. What is meant by these provisions in this policy of insurance?

         [It is contended on the part of the defense that if there was any negligence on the part of Francis DeLoy, or in other Words, if there was any such negligence as would have relieved the railroad company from liability, in case a suit would have been brought against them for damages, that such negligence is also a defense in this case, and amounted to voluntary exposure to unnecessary danger. We do not think that this is the law which will govern this case. We do not think that we can give any such meaning to this exception in the contract.]

         [But we say to you, gentlemen of the jury, that it means an intentional exposure to unnecessary danger, and that unless he did it intentionally you cannot find that he exposed himself to danger within the terms of this exception. Now, it is true that it is very difficult, and in fact it is rarely the case, that you can prove by positive evidence what a man's intentions were, and hence you must determine the intentions of a man generally from his acts and conduct, and it may be said that if a man acts so recklessly and carelessly that he shows an utter disregard of a known danger, that then he may be said to have exposed his person voluntarily to danger.]

         Or if the risk of danger is so obvious that a prudent man exercising reasonable foresight would not have done the act, then he may be said to have voluntarily exposed his person to danger. It must also be exposed to unnecessary danger.

         You have heard the facts in this case -- the purpose of his going upon the railroad track was to flag a train in order to stop it. He had a lawful right to go upon the railroad track for the purpose of flagging the train. He was not there as a trespasser, yet if, when he got upon the railroad track, he found that there was danger, then it was his duty to immediately leave the track. If, after he got upon the railroad track, the train was in sight, and he saw the speed with which it was coming, he had no right to stand there until it was too late for him to retreat. The rule that would apply in such a case is that he had no right to be there any longer than a prudent man, in the exercise of reasonable care and caution, would have deemed necessary. If he stayed there longer than reasonable prudence would permit a man to stay in a case of that kind,...

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